The GHS May "Arrive" Much Sooner Than You Expected
Depending on the actions taken by your supplier, new compliance obligations may be triggered by the Globally Harmonized System (GHS) Amendment to the OSHA hazard Communication Standard (HCS) far earlier than you anticipated.
Assume your chemical supplier decides to demonstrate a sense of humor by providing you with a new HCS 2012 (GHS)-compliant SDS and label on April 1, 2013 for Product X, a hazardous chemical mixture. Product X has not been modified, but, for the first time, the SDS identifies a previously undisclosed health hazard that was not required to be disclosed under HCS 1994, but would have to be disclosed by June 2015. It could be the presence of a mutagen, reproductive toxin, or respiratory sensitizer at a concentration between 0.1% and 1.0%, or the presence of a Category 4 acute toxin at a concentration over 25%. Your product lines include a repackaging or blending of Product X into your products at concentrations that would present the same health hazards and HNOCs as Product X. One of your employees reads the supplier's SDS and label, and asks you to explain the significance of this new disclosure. Thinking you are on firm legal ground, and without adequately considering other consequences, you politely praise the employee for being proactive, but remind the employee that OSHA does not require training on even the GHS SDS and label format until December 2013. You also point out that OSHA does not require training on the content of the GHS SDS and label until June 2015 and on the GHS-based in-plant labeling system until June 2016.
Your employee is not satisfied with your response and files a complaint with OSHA alleging exposure to undisclosed health hazards that are not covered by your training program or included in your MSDS/SDS or container labeling. On October 2, 2013, an OSHA inspector shows up at your site to conduct an investigation of the complaint. It has been 6 months since the April Fool's Day surprise. You explain that the complaint is based on a newly disclosed health hazard that your supplier was not required to disclose until June 2015 because your supplier apparently did not have any evidence indicating that the chemical posed a health hazard at those low concentrations.
What is the inspector's response? The inspector asserts you are in violation of several provisions of the OSHA HCS Standard (immediate training obligation, 3-month SDS update obligation, and 6-month labeling update requirement) and the OSHA PPE Standards (hazard assessment and provision of PPE) because you were advised of a new hazard under HCS 1994 and did not take the required follow-up actions. That is the essence of the informal oral response that OSHA's HCS-GHS expert provided to the audience at a recent Friday Forum sponsored by the American Cleaning Institute.
Is OSHA's informally stated position correct? Even if it is, can you avoid/delay this outcome by re-classifying Product X rather than relying on your supplier's classification?
For more information on OSHA hazard communication and chemical-related compliance obligations, please contact Lawrence Halprin at halprin@khlaw.com or 202-434-4177 or David Sarvadi at sarvadi@khlaw.com or 202-434-4249.